WALMART TO PAY $4.83 MILLION TO SETTLE OVERTIME DISPUTE

FROM:  U.S. DEPARTMENT OF LABOR
US Department of Labor recovers $4.83 million in back wages, damages for more than 4,500 Wal-Mart workers
Misapplied exemption resulted in pay violations; nearly $464,000 assessed in penalties
WASHINGTON — Wal-Mart Stores Inc., headquartered in Bentonville, Ark., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's Wage and Hour Division that found violations of the federal Fair Labor Standards Act's overtime provisions. Additionally, Wal-Mart will pay $463,815 in civil money penalties.

The violations affected current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. The Labor Department's investigation found that the employees are nonexempt and consequently due overtime pay for any hours worked beyond 40 in a week.

"Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations," said Secretary of Labor Hilda L. Solis. "Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned."

Under the terms of the settlement, Wal-Mart has agreed to pay all back wages the department determined are owed for the violations plus an equal amount in liquidated damages to the employees. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for back wages and an equal amount in liquidated damages. The civil money penalties assessed stem from the repeat nature of the violations. Wal-Mart, which operates more than 3,900 establishments in the United States, corrected its classification practices for these workers in 2007, and negotiation over the back pay issues has been ongoing since that time. A third-party administrator will disburse the payments to the affected employees.

"Our department has been working with Wal-Mart for a long time to reach this agreement," said Nancy J. Leppink, deputy administrator of the Wage and Hour Division. "I am very pleased that staff in our Southwest region persevered, ensured these employees will be paid the back wages they are owed and brought this case to conclusion. Thanks to this resolution, thousands of employees will see money put back into their pockets that should have been there all along. The damages and penalties assessed in this case should put other employers on notice that they cannot avoid their obligations to their employees by inappropriately classifying their workers as exempt."

The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.

The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also are required to maintain accurate time and payroll records.

LOUISIANA COMPANIES CITED FOR EXPOSING WORKERS TO HAZARDS

FROM:  U.S. DEPARTMENT OF LABOR

US Labor Department's OSHA fines Dis–Tran Steel and Dis–Tran Wood

Products of Pineville, La., for exposing workers to safety and health hazards

PINEVILLE, La. – The U.S. Department of Labor's Occupational Safety and Health Administration has cited Dis–Tran Steel LLC and Dis–Tran Wood Products Holdings LLC, two subsidiaries of Pineville-based Crest Industries Inc., with a total of 14 safety and health violations for exposing workers to combustible dust, electrical, welding and other hazards. Proposed penalties for both companies total $72,000.

OSHA opened an inspection on Oct. 18, 2011, at the companies' shared facility on Cenla Drive in Pineville as part of the agency's Site-Specific Targeting Program, as well as its national emphasis programs on amputations, primary metals, hexavalent chromium and combustible dust.

Dis–Tran Steel, which employs about 295 workers who manufacture steel utility poles, was cited for six serious violations including a lack of required machine guarding, strain relief on the cords of electric hand controls and screens to protect workers from rays produced by welding operations in adjacent areas. One other-than-serious violation is failing to ensure electrical cords are equipped with ground pins.

Dis–Tran Wood Products, which employs about 10 workers who manufacture wood cross arms for utility poles, was cited for five serious violations, including failing to provide dust-tight electrical enclosures to prevent wood dust explosions, provide access to an emergency eyewash station and ensure that the live parts of an appliance are enclosed. Two other-than-serious violations are failing to provide guardrails on fixed stairs and properly maintain exposed electrical wiring.

A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. An other-than-serious violation is one that has a direct relationship to job safety and health but probably would not cause death or serious physical harm.

"Employees were exposed to welding rays, which can cause serious eye injuries," said Dorinda Folse, OSHA's area director in Baton Rouge. "OSHA's standards must be followed to prevent injuries and illnesses. Fortunately, no one was injured in this case."

Both companies have 15 business days from receipt of the citations to comply, request an informal conference with OSHA's area director in Baton Rouge, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

2 BUSINESSES CITED BY DOL AFTER 6 DIED AND 2 INJURED AFTER GRAIN ELEVATOR EXPLODED

FROM:  U.S. DEPARTMENT OF LABOR
Bartlett Grain in Atchison, Kan., cited for willful and serious violations by US Labor Department after 6 die, 2 injured in grain elevator explosion
Contractor Kansas Grain Inspection Services also cited
ATCHISON, Kan. — Bartlett Grain Co. L.P. faces five willful and eight serious safety violations cited by the U.S. Department of Labor's Occupational Safety and Health Administration following an October 2011 grain elevator explosion in Atchison that killed six workers and left two others hospitalized.

The willful violations include allowing grain dust — which is nine times as explosive as coal dust — to accumulate, using compressed air to remove dust without first shutting down ignition sources, jogging (repeatedly starting and stopping) inside bucket elevators to free legs choked by grain, using electrical equipment inappropriate for the working environment and failing to require employees to use fall protection when working from heights.

"The deaths of these six workers could have been prevented had the grain elevator's operators addressed hazards that are well known in this industry," said Secretary of Labor Hilda L. Solis. "Bartlett Grain's disregard for the law led to a catastrophic accident and heartbreaking tragedy for the workers who were injured or killed, their families and the agricultural community."

The serious violations involve a lack of proper preventive maintenance, certification and lubrication of grain handling equipment; inadequate emergency action plan training for employees and contractors; a lack of employee and contractor training on job hazards; and a housekeeping program that was deficient because it did not prevent grain dust accumulations.
The citations to Bartlett Grain, which is based in Kansas City, Mo., carry $406,000 in proposed fines.

Topeka-based Kansas Grain Inspection Services Inc., a contractor employed by Bartlett Grain, also is being cited for one willful violation involving a lack of fall protection for employees working on the top of rail cars; one serious violation, the lack of a hazard communication program; and one other-than-serious violation, not providing basic advisory information about respirators to employees. These violations carry total proposed penalties of $67,500.

"OSHA standards save lives, but only if companies comply with them," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "Bartlett Grain has shown what happens when basic safety standards are ignored, and this agency simply will not tolerate needless loss of life."

A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

Over the past 35 years, there have been more than 500 explosions in grain handling facilities across the United States that have killed more than 180 people and injured more than 675. Grain dust is the main source of fuel for explosions in grain handling. This dust is highly combustible and can burn or explode if enough becomes airborne or accumulates on a surface and finds an ignition source (such as a hot bearing, overheated motor or misaligned conveyor belt, as well as heat or sparks from welding, cutting and brazing operations). OSHA standards require that both grain dust and ignition sources be controlled in grain elevators to prevent potentially deadly explosions.

Both companies have 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA's area director in Wichita, or contest the findings before the independent Occupational Safety and Health Review Commission.